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COVID-19 WEBINAR OUTLINE (Workers' Compensation) ILLINOIS

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COVID-19 WEBINAR OUTLINE (Workers' Compensation) ILLINOIS Chicago, IL Springfield, IL St. Louis, MO Overland Park, KS (312) 346-5310 (217) 726-0037 (314) 231-0770 (913) 221-0740 Indianapolis, IN Omaha, NE Milwaukee, WI (317) 204-4627 (402) 933-8851 (414) 273-3133 COVID-19 WEBINAR OUTLINE (Workers’ Compensation) ILLINOIS I. Amendment to the Illinois Workers’ Occupational Diseases Act. i. Illinois House Bill 2455 On June 5, 2020, Governor Pritzker signed Illinois House Bill 2455 into law which amended the Illinois Workers’ Occupational Diseases Act (820 ILCS 310/1) by adding Section 1(g) which creates an ordinary rebuttable presumption for first-responders, front-line workers, and employees of essential businesses who contracted COVID-19. The Illinois Workers’ Compensation Act was not amended. The Illinois Workers’ Compensation Act is designed to address injuries that are caused or aggravated by accidental injuries or traumas. However, the Illinois Workers’ Occupational Diseases Act is designed to create remedies for employees that are caused or aggravated by a gradual insidious process. ii. Amended Statutory Provisions. The rebuttable presumption applies to all cases tried after the effective date of the amendment, and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020. If the employee’s injury or occupational disease resulted from exposure to and contraction of the COVID-19 virus, the exposure and the contraction shall be rebuttably presumed to have arisen out of and in the course of the employee’s first-responder or front-line worker employment, and further that the injury or disease shall be rebuttably presumed to be causally connected to the hazards or the exposure of that employment. (Section 1(g)1). To establish a COVID-19 diagnosis on or before June 15, 2020, a medical diagnosis by a licensed medical practitioner or a positive laboratory test is sufficient. If you are diagnosed after June 15, 2020, the employee must provide a positive laboratory test for COVID-19 or COVID-19 antibodies. (Section1(g)6). COVID-19 first-responders and front-line workers are more fully defined in Section 1(g)(2) and include not only police and fire personnel, emergency medical technicians, paramedics and healthcare providers, but also corrections officers and any other employees of essential businesses as outlined in the Governor’s Executive Order 2020-10, dated March 20, 2020. However, if the employee was employed by an essential business (i.e. not a first-responder) as outlined in the Executive Order, they must also be required by their employment to encounter members of the general public or must be required to work in an employment location with more than 15 employees. This Section also specifically states that an employee’s home or place of residence is not a place of employment except for homecare workers. Section 1(g)(7) further limits the presumption by indicating that it does not apply if the employee’s place of employment was solely his home or residence for a period of 14 or more consecutive days immediately prior to his injury, disease, or period of incapacity related to the COVID-19 virus. Section 1(g)(3) indicates that the presumption created by Section 1(g)(1) may be rebutted by the employer by presenting evidence including but not limited to the following: (a) The employee was working from home, on leave, or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, disease or period of incapacity relating to COVID-19 virus; or (b) the employer was engaging and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing and help and safety practices based upon updated guidance issued by the CDC or Illinois Department of Public Health, or was using a combination of administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees for a period of at least 14 days prior to the employee’s injury, disease, or period of incapacity. For the purposes of this subsection, “updated” means the guidance in effect at least 14 days prior to the diagnosis. This section also defines personal protective equipment more specifically; or (c) the employer can introduce evidence that the employee was exposed to the COVID-19 virus by an alternate source. The legislative history and intent makes clear that the presumption is an “ordinary rebuttable presumption.” It therefore creates a prima facie case as to the issues of arising out of and in the course of employment and causation. However, the employer must introduce only “some evidence” that the employer’s occupation was not the cause of the injury or disease and the presumption will cease to operate and the issue will be determined on the basis of evidence admitted at trial as if the presumption never existed. Section 1(g)(10) outlines that to qualify for temporary total disability benefits under the presumption, the employee must be certified for or recertified for temporary total disability. Section 1(g)(11) outlines that the employer is entitled to a credit against its liability for TTD benefits for any sick leave benefits or extended salary benefits paid to the employee by the employer under the Emergency Family Medical Leave Expansion Act, the Emergency Paid Sick Leave Act, or the Families First Coronavirus Response Act, or any other federal law. In addition, the employer is entitled to any other credit that it would be entitled to under the Illinois Workers’ Compensation Act. iii. Can an Employee still pursue benefits if they are not entitled to the presumption? Section 1(g)(9) outlines that an employee who has contracted COVID-19 but fails to establish entitlement to the rebuttable presumption outlined in Section 1(g)(1), is not precluded from filing for Workers’ Compensation or Workers’ Occupational Diseases benefits. When evaluating COVID-19 claims, you do not want to solely focus on the rebuttal presumption but you want to evaluate the compensability of these cases based upon the anticipated evidence at trial as if no presumption ever existed. In other words, rebutting the presumption outlined in Section 1(g)(1) of the Illinois Workers’ Compensation Disease Act does not guarantee a victory for the employer as the employee can still pursue the claim and seek to establish by a preponderance of the evidence that the claim is compensable. II. Pursuing benefits under the Illinois Occupational Diseases’ Act (assuming no presumption). a) What qualifies as a compensable occupational disease? i. Definition of occupational disease as stated by 820 ILCS 310/1(d) of the Act – “a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public.” 820 ILCS 310/1(d) ii. What does it mean for a disease to arise out of employment? Pursuant to 820 ILCS 310/1(d), the Act provides: 1. “A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease.” 2. “The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.” iii. Causation: 1. The occupational disease needs only to be a causal factor in the development of the disability. The employee need not prove that it was the sole causative factor. Old Ben Coal Co. v. Indus. Comm'n, 217 Ill. App. 3d 70, 84 (5th Dist. 1991). 2. Employee having pre-existing issues is not fatal to compensability. b) COVID-19 claims When evaluating the compensability of your COVID-19 claims, we believe there are generally 1 out of 4 categories your employees will fall into when assessing your claims: i. Healthcare workers and first responders. ii. Essential employees (non-healthcare workers). iii. Traveling employees. iv. Non-essential employees. There are various arguments that can be made in support of and against the compensability of COVID-19 claim. Which group your employees falls under will have impact your compensability analysis. III. Impact of Work Restrictions on Payment of TTD and Maintenance Benefits a. Employer is closed due to COVID-19 i. If the employee has not reached maximum medical improvement, is TTD owed? If an employee has not reached maximum medical improvement, pursuant to Interstate Scaffolding v. Illinois Workers’ Compensation Commission, 236 Ill.2d 132, (2010), unless light duty work is being accommodated, TTD benefits are owed. If an employee has light duty restrictions which were being accommodated but light duty is no longer available due to a COVID-19 shut down or furlough, the employee would be owed TTD benefits until they reach MMI or until the employer reopens and light duty is again being accommodated. However, if an employee is working full duty without any restrictions, regardless of whether they have reached MMI and the location closes due to COVID-19, TTD would not be owed. ii. If the employee has reached maximum medical improvement, are TTD or maintenance benefits owed? 1. TTD: Under Interstate Scaffolding, once an employee has reached MMI they are no longer temporarily and totally disabled and not entitled to TTD benefits. Therefore, if the employer had to close due to COVID-19 the employee would not be entitled to TTD.
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